What institutions form our government?
Governance refers to the way a state is managed by the authority or authorities placed in charge.
The Australian Constitution is divided into Chapters that reflect the way Australia is to be governed.
The structure consists of three key branches: the Legislature, the Executive and the Judiciary, each with specific roles and institutions. Powers between these bodies are distributed by the Constitution in a way that ensures that no one branch has complete power or control over the decisions made for the country and its people. This system is called the Separation of Powers.
Australia’s system of government reflects its British heritage and the coming together of the colonies (states) at Federation as both a constitutional monarchy and a federation, meaning it has a monarch with limited powers and multiple levels of government.
1. Legislature (Parliament)
The Legislature has the power to
make and change laws. Members are
elected to Parliament through a vote by
the people. There is a bi-cameral
system with two Houses of Parliament:
the House of Representatives and the
Senate. The Governor-General gives
final Assent to Bills passed. This
structure and Parliamentary rules and
procedures, provide an important
check on legislative power. They
ensure laws are not made in secret or
without adequate scrutiny and debate.
Chapter I of the Australian Constitution
explicitly outlines (enumerates) the
areas Federal Government can make
laws for, meaning State Governments
have residual (what’s not listed) and
concurrent powers (ones that overlap).
This is called the ‘Division of Powers’.
Parliamentary sovereignty means the
Legislature has the power to make (or
unmake) any law within its legal
powers. If there is an inconsistency,
Federal laws override State Laws.
An independent judiciary also provides
a check on the Legislature to ensure all
legislation is lawful and made within
the powers of the Legislature.
Parliamentary Sovereignty is also held
in check through regular elections
where the people have the power to
elect/re-elect Members of Parliament
who make laws on behalf of the
people. This accountability is
supported by freedom of speech,
freedom of the media and an implied
freedom of political communication.
2. Executive (Government)
The Executive has the power to
enforce the laws and put them into
action. It consists of government
departments that are headed up by
Ministers of the government of the day,
who are members of the Cabinet. Each
Minister is given different portfolios –
areas that they are responsible for
managing.
Chapter II of the Australian
Constitution sets out the executive
powers of the Australian Government.
Powers of the executive are also
outlined in legislation as well as in
common law. All actions of the
executive must be in accordance with
the law.
Under the Constitution, the GovernorGeneral has ultimate power over the
Commonwealth of Australia. However,
this power is usually exercised on the
advice of the Executive Council and its
Ministers. Parliament can also
delegate authority to the Executive to
make laws.
The Executive is the largest and most
powerful branch of Government as it
has the power and strength to enforce
the law. An independent judiciary is an
important check on the power of the
Executive to ensures their actions are
lawful.
The Legislature also checks the power
of the Executive and holds them
accountable for their decisions
through parliamentary scrutiny and
question time
3. Judiciary (Courts)
The Judiciary has the power to
interpret laws and resolve disputes
about the law that arise between the
state, organisations and individuals.
Chapter III of the Australian
Constitution establishes the High
Court of Australia as the highest court
i.e. final court of appeal. The judiciary
make decisions which create law in the
form of case law (common law). The
decisions of lower courts are
reviewable on appeal to higher courts.
The High Court also makes decisions
about how the Constitution should be
interpreted.
The Judiciary must be independent and
impartial. They are independent so
they can be an effective check on the
power of the Legislature and Executive.
This allows them to make decisions
based on the law and not government
policy. They have the power to strike
down any laws made by the Legislature
that are outside their power, or to
declare actions of the Executive
unlawful. The Constitution protects
judges pay (remuneration) and length
of service from government
interference.
They must also be impartial as they
administer justice fairly and equally to
all, irrespective of their own personal
opinions and bias.
Parliamentary Sovereignty means the
Legislature can override a Courts
interpretation of an ordinary law by
passing or amending a law.
